Amicus Curiae Brief — Lewis v. United States

. WAR 1 1996

No. 95-6465

——eEeeeEEx~L E>» »_»_~—~™~XhX®~WaSRnRW

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

RAY LEWIS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE NATIONAL LEGAL AID AND

DEFENDER ASSOCIATION, THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS,

THE AMERICAN CIVIL LIBERTIES UNION,

AND DISTRICT OF COLUMBIA AMICI, AS

AMICI CURIAE IN SUPPORT OF PETITIONER

JOHN VANDERSTAR DAVID A. REISER

JEFFREY B. COOPERSMITH (Counsel of Record)

Covington & Burling Appellate Clinic

1201 Pennsylvania Avenue, N.W. George Washington University

Washington, D.C. 20044 Law School

(202) 662-5453 2000 G Street, N.W.

Washington, D.C. 20052

(202) 994-7463

STEVEN R. SHAPIRO

American Civil Liberties Union

Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

ARTHUR B. SPITZER

American Civil Liberties Union of

the National Capital Area

1400 20th Street, N.W.

Washington, D.C. 20036

(202) 457-0800

JAMES W. KLEIN

JAMIE S. GARDNER

Public Defender Service

451 Indiana Avenue, N.W.

Washington, D.C. 20001

(202) 628-1200

JOHN M. COPACINO

Criminal Justice Clinic

Georgetown University Law Center

111 F Street, N.W.

Washington, D.C. 20001

(202) 662-9575

TABLE OF CONTENTS

Page

BARES OF AUTEOURITEES 0... ce ee eee iii

I Ch 2 6 uaiscc ccc ccese yes |

SUMMARY OF THE ARGUMENT............. 2

EE eee 5

THE CONSTITUTION CONFERS A RIGHT TO

JURY TRIAL IN ANY PROSECUTION FOR

WHICH THE AUTHORIZED PENALTY

EXCEEDS SIX MONTHS’ IMPRISONMENT .... 5

A. The Court Has Adopted a Bright Line

Rule that Treats an Authorized Penalty

of More than Six Months’ Imprison-

ment —— for One Count or Several —

SS a 6

1. The Court Has Already Resolved

DMCS. Gans eke oe cece. 9

2. Codispoti Is Not Limited to

ih 2s areas @'a'e 6 40.0 e « 12

(i)

D. A Trial Judge Cannot Deprive the

Accused of the Right to a Jury Trial by

Promising to Impose a Sentence No

Greater Than Six Months’

ere ere ee

CORE. o.céns snets can eeaeetwares

a

TABLE OF AUTHORITIES

Cases

Page

Allen v. Hardy, 478 U.S. 255 (1986) ........... 24

Baldwin v. New York, 399 U.S.

RT a ar a a 2, 3, 5, 6, 18, 19

Bell v. United States, 349 U.S. 81

Sse he ete oS ee 7

Blanton v. City of North Las Vegas, 489 U.S. 538

eee ee ee ee eS oe passim

Bloom v. Illinois, 391 U.S. 194 (1968) ........ 13, 14

Brown v. Ohio, 432 U.S. 161 (1977) ............ 8

Callan v. Wilson, 127 U.S. 540 (1888) .......... 17

Cheff v. Schnackenberg, 384 U.S. 373

ee cen e 13

Codispoti v. Pennsylvania, 418 U.S. 506

Dives ee eee dens dee eta. passim

District of Columbia v. Clawans, 300 U.S. 617

Dirt ins Toate en sl eisecoaeceee es 17

District of Columbia v. Colts, 282 U.S.

Ct faeces ew’ he eee wt ce eee 16

Duncan v. Louisiana, 391 U.S. 145 (1968) ...... passim

Dyke v. Taylor Implement Manufacturing Co., 391

Ee Oe ee ee 13

Frank v. United States, 395 U.S. 147 (1969)... .. 6, 13

Irvin v. Dowd, 366 U.S. 717 (1961) ............ 30

J.E.B. v. Alabama ex rel. T.B., 114 §. Ct.

eee as ere ee oe ere ae tars 24

(ili)

iv

Jackson v. United States, 926 F.2d 763

(8th Cir.), cert. denied, 502 U.S. 967 (1991)... .. 8

Marks v. United States, 430 U.S. 188 (1977) ...... 19

Missouri v. Hunter, 459 U.S. 359 (1983) .......... 8

Powers v. Ohio, 499 U.S. 400 (1991) ....... 3, 24, 26

Schick v. United States, 195 U.S. 65

GD. <0 os aus ee eee nese ess cpewesys 15, 17

Scott v. Illinois, 440 U.S. 367 (1979) ......... 28, 29

Singer v. United States, 380 U.S. 24 (1965) ....... 26

State v. . ering, No. A-93-1128, 1994 Neb. App.

LEXIS 309 (Neb. App. Oct. 25, 1994), cert.

denied, 115 S. Ct. 1963 (1995) ...........465. )

State v. Sanchez, 786 P.2d 42 (N.M. 1990) ........ 9

State v. McCarroll, 337 So. 2d 475

it; Te 6 sd dee od See ha ea we 60.9 > baie 9

Sullivan v. Louisiana, 508 U.S. 275 (1993) ....... 26

Taylor v. Hayes, 418 U.S. 488 (1974) ......... 13, 22

United Mine Workers v. Bagwell, 114 S. Ct.

Sinne thie A ound > &6.5 bw 2.6 00,08 22

United States v. Brown, 71 F.3d 845

CG. ED 2 44S noe 602 esareencs 10, 21

United States v. Cooper, 966 F.2d 936 (Sth Cir.),

cert. denied, 506 U.S. 980 (1992) ........... 7

United States v. Coppins, 953 F.2d 86 (4th Cir.

GD oc 0 dnwO eb 6 66.04 0's wees’ bre 9 « 10, 21

United States v. Davenport, 929 F.2d 1169

(7th Cir. 1991), cert. denied, 502 U.S.

Be GESSE. 0 op oe 0:0 © 01m) 6.6.0,09 00,9 0 20 08 7

United States v. Dixon, 113 S. Ct. 2849 (1993) ..... 22

United States v. Esch, 832 F.2d 531 (10th Cir.

1987), cert. denied, 485 U.S. 908 (1988) ....... 7

Vv

United States v. Langford, 946 F.2d 798 (11th Cir.

1991), cert. denied, 503 U.S. 960 (1992) ....... x

United States v. Lewis, 65 F.3d 252

pS ae passim

United States v. Pollen, 978 F.2d 78 (3d Cir.

1992), cert. denied, 113 S. Ct. 2332

RE a Cs ae ee 7

United States v. Ravel, 930 F.2d 721 (9th Cir.),

cert. denied, 502 U.S. 911 (1991) ........... 8

United States v. Semple, 661 F. Supp. 556

es 9

United States v. Song, 934 F.2d 105 (7th Cir.

DG seetaebcch es tasveckcceccebe 8

United States v. Wall, 37 F.3d 1443 (10th

is eas a Wada Mae « Oe 6 6 6-0-0 60.0: 7

Statutes and Rules

EC ee Ce ee ee ee 7

I fe a ies ad he's Sob oe Oe 29

OL Cds SUNS 6 o'SS Ue Ware 63 oh 23

gs rr eee ee 8

Miscellaneous

Albert W. Alschuler and Andrew G. Deiss, A Brief

History of the Criminal Jury in the United

States, 61 U. Chi. L. Rev. 867 (1994) ........ 23

vi

Felix Frankfurter & Thomas G. Corcoran, Petty

Federal Offenses and The Constitutional

Guaranty of Trial by Jury, 39 HARV. L. REV.

if: | Perret tt ee ee eee 16

THE FEDERALIST PAPERS 495-510 (Clinton Rossiter ed.

ROGED tcc e a tih es We we Uhle Rew Vem ees 26

ALEXIS DE TOCQUEVILLE, 1 DEMOCRACY IN

AMERICA (Reeves trans., J.S. Mill ed.,

PPR eee ks VO ee . 23, 24

INTERESTS OF AMICI’

Amici are three national membership organizations, and

three organizations that provide legal representation to

indigent persons accused of crime in the District of

Columbia, all of which share an interest in the preservation

of the right to jury trial.

The National Legal Aid and Defender Association

(NLADA). NLADA is a nationwide non-profit organization,

dedicated to the provision of quality legal services in

criminal and civil cases to persons financially unable to

obtain counsel. Its membership includes most public

defender offices around the country, as well as many

assigned defense counsel.

The National Association of Criminal Defense

Lawyers (NACDL). NACDL is a nationwide, non-profit

voluntary association of criminal defense lawyers founded in

1958 with a membership of more than 8,700 attorneys. The

NACDL is affiliated with 68 state and local criminal defense

organization with which it works cooperatively on issues

related to criminal law and procedure, and thus, it speaks for

more than 28,000 criminal defense lawyers nationwide.

The American Civil Liberties Union (ACLU). The

ACLU is a non-profit, non-partisan organization with nearly

300,000 members nationwide. The ACLU is dedicated to

the preservation of individual rights and to the participation

of citizens in governance. Both are implicated in this case.

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3.

2

The District of Columbia Amici. The Public Defender

Service for the District of Columbia (PDS) was established

by Congress in 1970 to provide representation to indigent

criminal defendants in the local and federal courts of the

District of Columbia. Students in the Georgetown

University Law Center Criminal Justice Clinic (GULC-CJC)

have provided representation to defendants in misdemeanor

cases in the District of Columbia Superior Court since 1972.

Students in the George Washington University Law School

Appellate Clinic (GW-AC) represent indigent clients in

appeals from criminal convictions before the District of

Columbia Court of Appeals.

PDS, GULC-CJC, and GW-AC, together with the

American Civil Liberties Union of the National Capital

Area, the local affiliate of the ACLU, participated as amici

curiae in Burgess v. United States, No. 95-1352, a case

currently pending before the District of Columbia Court of

Appeals sitting en banc that involves the same issue

presented by the Petition for Writ of Certiorari in this case.

Burgess did not raise the second issue before this Court,

because the trial judge made no sentencing promises before

trial, and because the United States acknowledged that such

a promise would have no effect on a defendant’s right to jury

trial under the Constitution.

SUMMARY OF THE ARGUMENT

Petitioner Lewis was tried for two counts of obstructing

the United States mail, offenses for which Congress

authorized an aggregate term of imprisonment of one year,

the same penalty authorized for the offense of assault

charged in Baldwin v. New York, 399 U.S. 66 (1970).

Lewis was entitled to a jury trial for the same reason as

Baldwin: the authorized penalty for the charges he faced in

a single proceeding exceeded “that allowable for a petty

3

criminal offense.” Codispoti v. Pennsylvania, 418 U.S. 506,

516 (1974). The only distinction between this case and

Baldwin is that the prosecution in Baldwin involved a single

count, and this case involves two. This distinction cannot

make a constitutional difference. When tried together, the

two offenses charged here for obstructing the mail on two

consecutive days are no different in their seriousness from a

single continuing offense carrying a one year penalty for the

same conduct. The right to jury trial applies to this

prosecution, just as it would to the continuing offense.

The Court has relied on a simple, bright-line standard to

distinguish petty offenses from “crimes” requiring a jury

trial. “[NJo offense can be deemed ‘petty’ for purposes of

the right to trial by jury where imprisonment for more than

six months is authorized.” Baldwin, 399 U.S. at 69. As the

Court recognized in Codispoti, when several offenses are

tried together and their authorized penalties exceed six

months’ imprisonment, these offenses are “equivalent to a

serious offense.” 418 U.S. at 517. The penalty authorized

by the legislature plays an important role in deciding whether

society deems an offense serious in nature, Blanton v. City

of North Las Vegas, 489 U.S. 538, 541 (1989), but it also

plays an independent role in delimiting the petty offense

exception. This Court has never before exempted a

prosecution in which the authorized penalties “‘puncture the

6-month incarceration line,’” id. at 543 (quoting Brief for

Petitioner at 16), from the ambit of Article IIT and the Sixth

Amendment and it should not do so now. The six month

dividing line serves the dual purposes of the jury trial

clauses; "to prevent oppression by the Government,"

Duncan, 391 U.S. at 155, and to secure "[t]he opportunity

for ordinary citizens to participate in the administration of

justice." Powers v. Ohio, 499 U.S. 400, 406 (1991). A

crime is no less serious, from the perspective of the prisoner

ordered to serve the sentence, or that of the community

4

asked to accept the legitimacy of the punishment, because it

is charged in two counts tried together rather than one count

with the same penalty.

Nor is an otherwise serious criminal prosecution made

petty by a judicial officer's promise to impose a sentence of

six months’ imprisonment or less. This Court has already

held it is the sentence authorized by the legislature (or the

court, for criminal contempts), not the actual sentence

imposed, that determines the right to jury trial. Duncan v.

Louisiana, 391 U.S. 145, 159-60 (1968). The only

difference between a promised sentence and an actual

sentence of less than six months is that the accused has no

fear of a greater penalty at the beginning of the trial. But

the jury trial clauses were not included in the Constitution to

relieve anxiety; rather, they provide a bulwark of ordinary

citizens against the power of the government, including the

judiciary, in all criminal prosecutions.

Also, no principle could confine the effect of a judge’s

sentencing promise to cases like this one, where the basis for

the right to jury trial is the aggregate penalty for several

counts. Giving effect to such a promise would allow a judge

to deny a jury trial for any crime, regardless of the

authorized penalty, so long as the judge was willing to trade

a lighter sentence for the administrative ease of a bench trial.

But the legislative branch must strike this balance — subject

to the six month limit — not a busy trial judge. Allowing

sentencing promises to determine the right to jury trial would

also pose serious practical problems, because a judge can

neither exercise informed discretion without gathering

information about the offense and the offender, nor gather

such information without tainting the trial.

5

ARGUMENT

THE CONSTITUTION CONFERS A

RIGHT TO JURY TRIAL IN ANY

PROSECUTION FOR WHICH THE

AUTHORIZED PENALTY EXCEEDS

SIX MONTHS’ IMPRISONMENT.

This Court has determined that "(t]he possibility of a

sentence exceeding six months . . . is ‘sufficiently severe by

itself’ to require the opportunity for a jury trial." Blanton v.

City of North Las Vegas, 489 U.S. 538, 542 (1989) (quoting

Baldwin v. New York, 399 U.S. 66, 69 n.6 (1970)). The

question here is how that rule should be applied to a

prosecution in which the aggregate penalty authorized for all

counts exceeds six months, but the penalty authorized for

each count alone is six months or less. To achieve its

purpose, the Baldwin rule must apply to the entire

prosecution. That is how the Court applied Baldwin to a

single prosecution for seven counts of criminal contempt in

Codispoti v. Pennsylvania, 418 U.S. 506 (1974). The text

of the Constitution requires this result, because it confers a

right to jury trial for “all crimes,” and in “all criminal

prosecutions," rather than for individual counts in a

prosecution. Moreover, any application of the jury trial

clauses must respect the “profound judgment," Duncan v.

Louisiana, 391 U.S. 145, 155 (1968), that decisions about

life and liberty — in all but truly petty matters — were

entrusted to juries as a check on the power of government.

6

A. The Court Has Adopted a Bright Line Rule that

Treats an Authorized Penalty of More than Six

Months’ Imprisonment — for One Count or

Several — as Serious.

Article III and the Sixth Amendment secure the right to

jury trial for "all crimes" and “all criminal prosecutions."

Because English common law exempted petty offenses from

the right to jury trial, however, this Court has read such an

exception into the constitutional text. Duncan, 391 U.S. at

159. To distinguish petty offenses from crimes triable by

jury this Court has drawn a bright line in Baldwin v. New

York, 399 U.S. 66 (1970), Codispoti v. Pennsylvania, 418

U.S. 506 (1974), and Blanton v. City of North Las Vegas,

489 U.S. 538 (1989), based on the authorized penalty: “no

offense can be deemed ‘petty’ for purposes of the right to

trial by jury where imprisonment for more than six months

is authorized.” Baldwin, 399 U.S. at 69 (footnote omitted).

This standard is easy to apply, whether to one offense or to

several. In Codispoti, the Court overturned judgments for

criminal contempt for which the trial judge imposed

consecutive sentences totaling more than six months, “a

ruling which necessarily extended the prison term to be

served beyond that allowable for a petty criminal offense.”

418 U.S. at 516 (emphasis added). When the penalties

authorized by the legislature for offenses tried together in a

single proceeding exceed six months, they go “beyond that

allowable for a petty criminal offense,” and the defendant is

entitled to a jury trial.

? “In criminal contempt prosecutions, ‘where no maximum penalty is

authorized, the severity of the penalty actually imposed is the best

indication of the seriousness of the particular offense,’” Blanton, 489

U.S. at 542 n.6 (quoting Frank v. United States, 395 U.S. 147, 149

(1969)), whereas the penalty authorized by the legislature controls here.

7

Criminal conduct does not come neatly pre-packaged as

“offenses.” The authorized consequences of each criminal

prosecution are determined by a combination of legislative

action —— the definitions of offenses and their maximum

sentences — and executive action — the decision to select

charges and to join them for prosecution. The Constitution’s

criminal jury trial provisions would provide little protection

against arbitrary power to the accused and little right of

participation to the citizen if a prosecutor’s charging decision

conclusively determined the right to jury trial regardless of

the penalty authorized for the entire proceeding.

Legislatures have a great deal of leeway in defining

crimes and specifying their penalties. For example,

Petitioner Lewis was charged with two counts of obstructing

the mail, in violation of 18 U.S.C. § 1701, with each count

relating to conduct on a different day. United States v.

Lewis, 65 F.3d 252, 253 (2d Cir. 1995). But Lewis was

observed opening (and obstructing) several pieces of mail on

June 3; depending upon the unit of prosecution chosen by the

legislature, each act could have constituted a separate

offense, subject to a separate penalty.’ On the other hand,

> See Bell v. United States, 349 U.S. 81 (1955) (transportation of several

women across state lines for immoral purposes was single violation of the

Mann Act); United States v. Cooper, 966 F.2d 936, 943 n.11 (Sth Cir.),

cert. denied, 506 U.S. 980 (1992) (unit of prosecution for making

building available as a crack house, 21 U.S.C. § 856(a)(2)); United

States v. Wall, 37 F.3d 1443, 1445 (10th Cir. 1994) (bank fraud, 18

U.S.C. § 1344(2)); United States v. Esch, 832 F.2d 531, 541 (10th Cir.

1987), cert. denied, 485 U.S. 908 (1988) (use of a minor to create

sexually explicit visual images, 18 U.S.C. § 2251(a)); United States v.

Pollen, 978 F.2d 78, 85 (3d Cir. 1992), cert. denied, 113 S. Ct. 2332

(1993) (tax evasion, 26 U.S.C. § 7201); United States v. Davenport, 929

F.2d 1169, 1172 (7th Cir. 1991), cert. denied, 502 U.S. 1031 (1992)

(structuring currency transactions, 31 U.S.C. § 5324(3)); United States

(continued...)

8

some crimes are defined as "continuing offenses" that may

include conduct over the course of several days, weeks, or

years, see Brown v. Ohio, 432 U.S. 161, 169-70 (1977), so

that Lewis’ crime on both days could just as easily have been

defined as a single offense. Moreover, this Court’s decision

in Missouri v. Hunter, 459 U.S. 359, 368-69 (1983),

determined that even when two statutes include the same

elements, "[w]here . . . a legislature specifically authorizes

cumulative punishment under two statutes, regardless of

whether those two statutes proscribe the ‘same’ conduct

under Blockburger, a court’s task of statutory construction is

at an end and the prosecutor may seek and the trial court or

jury may impose cumulative punishment under such statutes

in a single trial." For this reason, the legislature has the

authority to subdivide any prohibited criminal conduct into

overlapping offenses for which consecutive sentences could

be imposed. A prosecutor may choose to join any number

of such offenses in a single prosecution under Fed. R. Crim.

P. 8. A jury trial right that depends only on the penalty

specified for a count in an information, and allows unlimited

penalties to be imposed for the same conduct in a single non-

jury trial, provides no defense against government

oppression.

*(...continued)

v. Langford, 946 F.2d 798 (11th Cir. 1991), cert. denied, 503 U.S. 960

(1992) (use of mail to commit securities fraud, 15 U.S.C. § 78j(b));

United States v. Song, 934 F.2d 105, 108-9 (7th Cir. 1991) (trademark

offense, 18 U.S.C. § 2320); United States v. Ravel, 930 F.2d 721, 724

(9th Cir.), cert. denied, 502 U.S. 911 (1991) (possession of stolen

merchandise, 18 U.S.C. § 659); Jackson v. United States, 926 F.2d 763

(8th Cir.), cert. denied, 502 U.S. 967 (1991) (possession of unregistered

firearms, 26 U.S.C. § 5861).

9

1. The Court Has Already Resolved the Issue

Presented Here in Codispoti.

The only decision by this Court to have applied the

Sixth Amendment to a joint trial of several counts, each

carrying a maximum penalty of six months’ imprisonment or

less, is Codispoti v. Pennsylvania, 418 U.S. 506 (1974),

because the aggregate penalty imposed as a result of a single

proceeding exceeded six months. Following the decision in

Codispoti, every federal court to consider the issue, until the

decision below in Lewis, concluded that a jury was required

for a single trial on several individually petty offenses if the

aggregate penalty was greater than six months.‘ In addition,

two state supreme courts that had previously concluded no

jury trial was required when each offense was punishable by

less than six months reversed themselves after Codispoti.°

The common defect in the recent decisions concluding that

* Lewis, 65 F.3d at 254 (collecting cases). The Second Circuit omitted

the decision in United States v. Semple, 661 F. Supp. 556, 557

(D.D.C. 1987), from its list, but we think this was appropriate because

the district judge in Semple based his decision on what he erroneously

believed to be binding precedent from the local District of Columbia

courts.

* State v. McCarroll, 337 So. 2d 475, 480 (La. 1976) (overruling Ciry

of Monroe v. Withite, 233 So. 2d 535 (La.), cert. denied, 400 U.S. 910

(1970)); State v. Sanchez, 786 P.2d 42 (N.M. 1990) (overruling Stare v.

James, 415 P.2d 543 (N.M. 1966)). An unpublished intermediate

appellate court decision in State v. Goering, No. A-93-1128, 1994 Neb.

App. LEXIS 309 (Neb. App. Oct. 25, 1994), cert. denied, 115 S. Ct.

1963 (1995), is the only post-Codispoti state case of which we are aware

that has upheld convictions in a multiple count prosecution for which an

aggregate sentence of more than six months’ imprisonment was

authorized. Goering relied on the actual, rather than the authorized

sentence, contrary to the teaching of Duncan, 391 U.S. at 159-60.

10

a jury trial is not required when the authorized aggregate

penalty exceeds six months’ imprisonment is that they either

ignore Codispoti entirely, or mistakenly deem it irrelevant.

See Lewis, 65 F.3d at 255; United States v. Brown, 71 F.3d

845 (llth Cir. 1996); see also United States v. Coppins,

953 F.2d 86, 91-92 (4th Cir. 1991) (Niemeyer, J.,

dissenting).° Properly understood, Codispoti resolves the

issue now before the Court.

Codispoti was sentenced to fourteen years in prison for

seven separate criminal contempts committed on separate

days of a criminal trial in which Codispoti served as his own

counsel. The Court vacated these summary contempt

judgments, remanding for trial before a different judge. 418

U.S. at 507 (citing Mayberry v. Pennsylvania, 400 U.S. 455

(1971)). On remand, Codispoti requested a jury trial, which

was denied. After reviewing the transcripts of the 1966

trial, the new judge found Codispoti guilty as charged, and

sentenced him to six months in prison for each of six counts,

and to a term of three months for the remaining count, with

each sentence to run consecutively. /d. at 509.

The Court began its analysis by describing "a fixed

dividing line between petty and serious offenses: those

crimes carrying a sentence of more than six months are

* Judge Niemeyer did not cite Codispoti at all in his Coppins dissent and

neither did the Eleventh Circuit in Brown. Neither party cited Codispoti

in their briefs to the Second Circuit below, although both sides cited

cases discussing Codispoti. The Lewis court concluded that “[wjhile

Codispoti controls in those circumstances in which no maximum penalty

is provided by law, it does not affect the analysis when Congress has

provided a specific measure of the seriousness of a particular crime --

then, as now, aggregation of penalties remains an inappropriate basis

upon which to determine a defendant's right to a jury trial.” 65 F.3d

at 255.

11

serious crimes and those carrying a sentence of six months

or less are petty crimes." /d. at 512. Explaining the issue

before the Court, Justice White acknowledged that, "[oJur

cases, . do not expressly address petitioners’ remaining

argument that they were entitled to jury trials because the

prison sentences imposed after post trial convictions for

contemptuous acts during trial were to be served

consecutively and, although each was no more than six

months, aggregated more than six months in jail." /d. at

512-13. Pennsylvania argued “that petitioners’ contempts

were separate offenses and that, because no more than a six

months’ sentence was imposed for any single offense, each

contempt was necessarily a petty offense triable without a

jury." Jd. at 517.

The Court rejected the state’s argument that it should

look at each count separately, rather than apply the "fixed

dividing line" to the prosecution as a whole:

Here the contempts against each petitioner

were tried seriatim in one proceeding, and

the trial judge not only imposed a separate

sentence for each contempt but also

were to run consecutively rather than

concurrently, a ruling which necessarily

extended the prison term to be served

beyond that allowable for a petty criminal

offense. As a result of this single

proceeding, Codispoti was sentenced to

three years and three months for his seven

contemptuous acts, Langnes [a

co-defendant] to two years and eight

months for his six contempts. In terms of

the sentence imposed, which was obviously

12

contemnor was tried for what was

equivalent to a serious offense and was

entitled to a jury trial.

Id. at 516-17 (emphasis added). Although the Court divided

over the disposition of the case,’ no Justice registered

disagreement with the proposition that the aggregate

sentence, rather than the sentence for each count, was

dispositive of the jury trial claim.

2. Codispoti Is Not Limited to Contempts.

Notwithstanding the clear import of Codispoti, the court

below insisted that "aggregation of penalties remains an

inappropriate basis upon which to determine a defendant's

right to a jury trial." 65 F.3d at 255. The Lewis court

thought it was not bound by Codispoti, because it was a

contempt case. However, Codispoti cannot be meaningfully

distinguished from this case on the ground that it involved

contempt charges. First, the Court in Blanton cited

Codispoti along with Baldwin for the proposition that "[wJe

held ‘only that a potential sentence in excess of six months’

imprisonment is sufficiently severe by itself to take the

offense out of the category of []petty[].’" Blanton, 489 U.S.

at 538 (quoting Baldwin, 399 U.S. at 69 n.6, and citing

Codispoti, 418 U.S. at 506, 512 n.4) (emphasis deleted).

The Blanton Court did not shy away from relying on

Codispoti because it was a contempt case. Even more

importantly, however, the Codispoti decision itself stated

’ Justice Blackmun authored a dissent, joined by Chief Justice Burger,

and Justices Stewart and Rehnquist, arguing that the right to jury trial

was inapplicable to “direct” criminal contempts. 418 U.S. at 522-23.

In a separate dissent, Justice Rehnquist argued that Duncan should not be

applied, because Codispoti had first been convicted of the contempts in

1966. Id. at 533.

13

that: “criminal contempt is a crime in every fundamental

respect. . . .‘[I)n terms of those considerations which make

the right to jury trial fundamental in criminal cases, there is

no substantial difference between serious contempts and other

serious crimes.’" Codispoti, 418 U.S. at 516 (emphasis

added; citation omitted; alteration in original); see also

Taylor v. Hayes, 418 U.S. 488, 495 (1974).*®

This Court addressed the aggregation issue in Codispoti

with the assumption that each separate contempt charge was

* The application of the Sixth Amendment to the states in Duncan

coincided with an equally important development in the law of contempt.

In Bloom v. Illinois, 391 U.S. 194 (1968), decided the same day as

Duncan, the Court proclaimed that, “[c]riminal contempt is a crime in

the ordinary sense,” 391 U.S. at 201, to which the right to trial by jury

applied. [Illinois law provided no maximum sentence for contempt.

Bloom had been sentenced to prison for two years, the same penalty

authorized for Duncan’s crime. “Under the rule in [Chef v.

Schnackenberg, 384 U.S. 373 (1966)], when the legislature has not

expressed a judgment as to the seriousness of an offense by fixing a

maximum penalty which may be imposed, we are to look at the penalty

as the best evidence of the seriousness of the offense.” Jd. at 211.

Relying on its determination in Duncan that an offense punishable by two

denied a right to a jury trial. Since Duncan and Bloom, the jury trial

clauses have been applied to contempts in the same way they have been

to statutory offenses. See Frank v. United States, 395 U.S. 147 (1969)

(criminal contempt punished by a term of three years’ probation is a petty

offense); Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 219-220

(1968) (no right to jury trial for contempt where state law limited penalty

to 10 days in jail and a $50 fine). Bloom and Frank show that -- except

for the manner in which the authorized sentence is determined -- the jury

trial right for criminal contempts and for statutory offenses is the same.

14

a petty offense, and concluded that these otherwise petty

offenses aggregated together were "equivalent to a serious

offense" for purposes of the jury trial right. 418 U.S. at 516

(emphasis added). The only difference between Codispoti

and a non-contempt aggregation case is that in Codispoti the

Pennsylvania trial court determined that the offenses were

"petty," while for other crimes the legislature would have

made this determination. But once such a determination has

been made, the analysis of whether a jury trial is required is

the same, and Codispoti therefore cannot be dismissed, as it

was by the Second Circuit, because it involved contempt

offenses.

The United States has argued elsewhere, however, that

the decision in Codispoti was really based on the need to rein

in potential abuses of the contempt power: "Thus

understood, Codispoti merely deprives a trial judge of the

power to avoid the constitutional requirement of jury trial by

post hoc parsing of a single contempt into multiple

charges."® It would, naturally, raise concerns if a judge

intentionally manipulated contempt charges to circumvent the

right to jury trial, but the opinion in Codispoti does not

betray a hint that the Court suspected such an abuse.

Indeed, the decision to treat Codispoti’s conduct. as seven

separate contempts, rather than as a single crime, was made

by the original trial judge in 1966, before this Court had

even decided Duncan and Bloom."© The judge had no

* Brief for Appellee before the En Banc Court at 35, Burgess v. United

States, (D.C.) (No. 95-CM-1352).

'© Moreover, the plurality would hardly have agreed that the trial judge

could have levied the same penalties in separate summary contempt

proceedings, if the objective had been to restrain the contempt power.

See 418 U.S. at 513-15 (plurality). Bur see 418 U.S. at 519 (Marshall,

J., concurring in part).

15

reason to structure the contempt charges to avoid

constitutional rulings that had not been made. See 418 U.S.

at 533 (Rehnquist, J., dissenting) (arguing that Duncan

should not be applied because the original contempt

judgments predated that decision). Rather than hinging the

jury trial right on an unproductive inquiry into the charging

official’s subjective intentions, Codispoti sticks to the bright

line rule. Furthermore, concerns about structuring

prosecutions to avoid jury trials are not limited to criminal

contempts. The same potential for evasion and abuse would

exist if prosecutors were free to reassemble serious crimes

as packages of petty offenses. Instead of a "fixed dividing

line” related to our society’s notion of what kinds of criminal

punishments must bear the imprimatur of the community, we

would have a purely arbitrary line that would depend entirely

on prosecutorial discretion.

B. The Seriousness of the Penalty Is a Basis for

Requiring a Jury Trial, Independent of the

Nature of the Offense.

This Court has historically used both “the nature of the

offense and the amount of punishment prescribed,” to

determine whether prosecution is “petty” rather than

criminal. Schick v. United States, 195 U.S. 65, 68 (1904).

Petty offenses are those that neither carry a serious penalty,

nor are by their nature otherwise serious. The Court’s

reliance on penalty in recent years to determine the nature of

the offense should not obscure the independent role that the

potential loss of liberty has always played in the petty

offense cases. Because the aggregate penalty here was

serious, the nature of the individual counts does not affect

Petitioner’s right to a jury trial.

The jury trial provisions of Article III and the Sixth

Amendment were intended to preserve the right to jury trial

16

as it existed under English common law. Although both the

Sixth Amendinent and Article III are by their terms absolute,

“[ijt has long been settled that ‘there is a category of petty

crimes or offenses which is not subject to the Sixth

Amendment jury trial provision.’” Blanton, 489 U.S. at 541

(quoting Duncan, 391 U.S. at 159)). The words of the

Constitution — “all crimes” and “all criminal prosecutions”

— “cannot be interpreted safely except by reference to the

common law and British institutions as they were when the

instrument was framed and adopted." Felix Frankfurter &

Thomas G. Corcoran, Petty Federal Offenses and the

Constitutional Guaranty of Trial by Jury, 39 HARV. L. REV.

917, 921 (1926) (quoting Ex parte Grossman, 267 U.S. 87,

108 (1925)). English justices of the peace exercised limited

“summary jurisdiction” to try petty offenses without a jury,

and this practice persisted in the colonies and then in the

new United States, notwithstanding the adoption of state

constitutional provisions guaranteeing the right to jury trial.

“Broadly speaking, acts were dealt with summarily which

did not offend too deeply the moral purposes of the

community, which were not too close to society’s danger,

and were stigmatized by punishment relatively light.” Jd. at

980-81."

In Callan v. Wilson, 127 U.S. 540, 549 (1888), the

'! When an offense has a specific common iaw antecedent, however, the

Court has held that the Constitution preserves the right to jury trial,

regardless of the modern penalty. District of Columbia v. Colts, 282

U.S. 63 (1930) (reckless driving, punishable by a $25 fine and up to

thirty days in jail, was jury-triable at common law). Although the Court

has undoubtedly “moved away” from reliance on common law offenses,

it has not overruled Colts, or other decisions using a common law test.

See Blanton, 489 U.S. at 541 & n.S. We agree with Petitioner that

obstruction of the mail was a serious offense at common law, and that he

was entitled to a jury trial on that basis as well. Pet. Br. at 24-6.

17

Court’s first petty offense case, the Court explained that the

word “crime” in Article III, “embraces as well some classes

of misdemeanors, the punishment of which involves or may

involve the deprivation of the liberty of the citizen.” In

Schick, the Court upheld waivers of the right to jury trial,

concluding that receiving unbranded oleomargarine was a

petty offense. Responding to the claim that the offense was

a crime because it was included in legislation providing

elsewhere for substantial criminal penalties, Justice Brewer

wrote: “The truth is, the nature of the offense and the

amount of punishment prescribed rather than its place in the

statutes determines whether it is to be classed among serious

or petty offenses, whether among crimes or misdemeanors.

Clearly both indicate that this particular violation of the

statute is only a petty offense.” 195 U.S. at 68.

In District of Columbia v. Clawans, 300 U.S. 617, 625

(1937), the Court accepted the defendant’s concession that

the offense of dealing in second hand property without a

license was, by its nature, a petty offense. Nevertheless, the

Court went on to consider whether the statutory penalty —

a fine of $300 and imprisonment for up to 90 days —

provided a basis for a jury trial. Agreeing that “the question

is not free from doubt,” id., the Court examined the

penalties for petty offenses under English and colonial law,

and found it “impossible to say that a ninety day penalty for

a petty offense, meted out upon a trial without a jury, does

not conform to standards which prevailed when the

Constitution was adopted.” Jd. at 626-27. Significantly, the

Court presaged the adoption of the six month rule in

Baldwin:

But we may doubt whether summa’y trial

with punishment of more than si _ months’

imprisonment, prescribed by some pre-

Revolutionary statutes, is admissible

18

without concluding that a penalty of ninety

days is too much. Doubts must be

resolved, not subjectively by recourse of

the judge to his own sympathy and

emotions, but by objective standards such

as may be observed in the laws and

practices of the community taken as a

gauge of its social and ethical judgments.

Id. at 627-28 (footnote omitted).

Duncan v. Louisiana held the right to jury trial

applicable to the states through the Fourteenth Amendment.

391 U.S. at 156. Turning to Louisiana’s contention that

Duncan was not entitled to a jury trial in any event, because

he was sentenced to only sixty days in a parish prison, the

Court restated the rule for federal offenses: “Crimes

carrying possible penalties up to six months do not require

a jury trial if they otherwise qualify as petty offenses. But

the penalty authorized for a particular crime is of major

relevance in determining whether it is serious or not and may

in itself, if severe enough, subject the trial to the mandates

of the Sixth Amendment.” Id. at 159 (citations omitted;

emphasis added).

The Court relied on “objective criteria, chiefly the

existing laws and practices in the Nation,” to decide whether

the maximum penalty for battery — imprisonment for up to

two years and a fine — required a jury trial. /d. at 161.

The Court noted that “in the late 18th century in America

crimes triable without a jury were for the most part

punishable by no more than a six-month prison term,

although there appear to have been exceptions to this rule.”

Id. Current state practice also supported a six-month rule.

In a footnote, the Court observed that “there appear to be

only two instances, aside from the Louisiana scheme, in

19

which a State denies jury trial for a crime punishable by

imprisonment for longer than six months.” Jd. at 161 n.33.

The Court declined, however, to "settle in this case the exact

location of the line between petty offenses and serious

crimes,” id. at 161, finding it sufficient to hold that a crime

punishable by two years imprisonment was not a petty

offense, id. at 161-62.

Finally, in Baldwin v. New York, 399 U.S. 66 (1970),

the Court “concluded that no offense can be deemed ‘petty’

for purposes of the right to trial by jury where imprisonment

for more than six months is authorized.” Jd. at 69 (plurality

opinion). The Court recognized that previous decisions

had considered the nature of the offense as well as the

authorized penalty. Jd. at 69 n.6. The Court found it

unnecessary to consider the nature of the offense in Baldwin,

however, deciding “only that a potential sentence in excess

of six months’ imprisonment is sufficiently severe by itself

to take the offense out of the category of ‘petty.’*” Jd. The

Court drew the line at six months on the basis of a “near-

uniform judgment” that a jury trial is required “when what

is at stake is the deprivation of individual liberty for a period

exceeding six months.” Jd. at 72. Because Baldwin faced

a maximum authorized sentence of one year, the same

sentence authorized for Petitioner Lewis’ two offenses, the

Court reversed his conviction.

Justice White authored the opinion of the Court, joined by Justices

Brennan and Marshall. Justices Black and Douglas concurred in the

judgment, reiterating their view that any offense punishable by

imprisonment merits a jury trial under the Constitution. 399 U.S. at 74-

75. Chief Justice Burger, and Justices Stewart and Harlan wrote separate

dissents. id. at 76; 117; and 143. Because the plurality’s ruling is

narrower than the view articulated in the concurring opinion, it

constitutes the holding of this Court. See Marks v. United States, 430

U.S. 188, 193 (1977).

20

In Blanton v. City of North Las Vegas, 489 U.S. 538

(1989), the Court moved closer to a rule distinguishing petty

offenses from crimes solely by reference to penalty.

Although the Court did not overrule its “early decisions

focus[ing] on the nature of the offense and on whether it was

triable by a jury at common law," id. at 541, the decision in

Blanton adopted a presumption that society views an offense

punishable by six months’ imprisonment or less as petty. Jd.

at 543."

The Court justified its "decision to move away from

inquiries into such matters as the nature of the offense," and

to rely instead on the objective measure of the authorized

penalty, in part on “the substantial number of statutory

offenses lacking common-law antecedents," id. at 541 n.5.

Blanton makes clear, however, that once the "6-month

incarceration line" is crossed, the inquiry into seriousness

comes to anend. The views of society about the seriousness

of an offense expressed through the legislature matter only

when the penalty itself does not "‘puncture the 6-month

incarceration line.’" 489 U.S. at 543.

Nevertheless, Blanton has been misinterpreted as

authority for disregarding the aggregate penalty in a multiple

‘3 A defendant is entitled to a jury trial in such circumstances

only if he cam demonstrate that any additional statutory

penalties, viewed in conjunction with the maximum authorized

period of incarceration, are so severe that they clearly reflect

a legislative determination that the offense is a "serious" one.

This standard, albeit somewhat imprecise, should ensure the

availability of a jury trial in the rare situation where a

legislature packs an offense it deems “serious” with onerous

penalties that nonetheless “do not puncture the 6-mionth

incarceration line."

Id. (citation and footnote omitted).

21

count prosecution. See Brown, 71 F.3d at 847; Lewis, 65

F.3d at 254. In his dissent in Coppins, Judge Niemeyer

wrote:

The fact remains that the defendant is

charged with separate, petty offenses, each

constituting a crime for which the

defendant would not be entitled to a jury

trial. The meaningful constitutional object

of inquiry is the offense with which the

defendant is charged, not the accumulation

of offenses tried on a given day or on a

given charging document. Judicial

efficiency imposed at no greater risk to the

defendant should not change the standard

for determining whether the defendant is

given a jury trial. This is the case where

multiple zeros still add up to zero.

953 F.2d at 92. Neither this reasoning, nor this arithmetic,

adds up. As this Court recognized in Codispoti, "the

accumulation of offenses tried on a given day" does matter.

The aggregate penalty authorized for a single proceeding is

an object of constitutional inquiry, even if the legislature has

deemed each count to be a petty offense. Moreover, the

penalties for "petty offenses" are not “zeroes” that sum to

zero, but periods of incarceration that when strung together

phen were in Codispoti, are “equivalent to a serious

offense.”

Contrary to Judge Niemeyer and to the Second Circuit

below, a plurality of the Codispoti court saw an important

difference between a single trial with an aggregate penalty

greater than six months’ imprisonment and a series of

summary contempt trials, each punishable by six months or

less, “even if the total punishment meted out" exceeded six

22

months. 418 U.S. at 515." Justice Marshall, later the

author of Blanton, thought a jury trial should be available,

even for separate summary proceedings.'* Like Justice

White’s opinion, Justice Marshall’s concurrence stressed

"that a six month sentence is the constitutional dividing line

between serious offenses for which trial by jury must be

afforded and petty offenses, and that in contempt cases it is

the sentence actually imposed rather than the penalty

authorized by law which is determinative." Jd. at 519.

Blanton did not entrust the Sixth Amendment to the

legislature; rather, it adopted an objective bright-line judicial

standard that defers to the legislature’s judgment about the

seriousness of a given offense, provided the accused is not

'* We think the court below was wrong in suggesting that the fact that

prosecutors could avoid jury trials by charging petty offenses separately

has any bearing on how to apply the jury trial clauses to a single joint

prosecution. See Lewis, 65 F.3d at 255. Prosecutors have substantial

incentives to join related offenses for trial, see United States v. Dixon,

113 S. Ct. 2849, 2863 n.15 (1993), whether or not this means a

defendant is entitled to jury trial, so that continuing to require jury trials

in multiple count prosecutions will not create new administrative burdens

for the courts, even in those two Circuits that have recently adopted a

contrary rule. In addition, prosecutors will remain free to pursue single

count prosecutions for petty offenses in cases in which they conclude the

advantages of a bench trial justify seeking only a petty sentence. What

prosecutors cannot do — as they did here — is to have it both ways,

- seeking serious penalties in a non-jury proceeding.

'S Although amici share Justice Marshall’s concerns about potential

abuse of the summary contempt power, we think these are better

addressed under the rubric of the Due Process Clause. Cf. United Mine

Workers v. Bagwell, 114 S. Ct. 2552 (1994). In addition, the summary

proceedings must be truly separate. When sentencing for summary

contempts committed in the same proceeding is deferred, the six month

limitation applies to the aggregate penalty for all counts. Taylor v.

Hayes, 418 U.S. 488, 495-96 (1974).

23

threatened with the loss of more than six months of

liberty."° A “fixed dividing line" based upon objective

criteria cannot be oblivious to the real world difference

between a trial on a single count with a maximum authorized

sentence of six months, and a trial on several counts, with

no limit on the authorized punishment.

C. The Right to Jury Trial Is Not Only an

Individual Right of the Defendant; the Jury Trial

Clauses Protect the Legitimacy of the Criminal

Law by Assuring the Community’s Participation

in the Determination of Guilt or Innocence When

Serious Penalties Are at Stake.

The proponent of an exception to the right to jury trial,

has a heavy burden of justification not only because of the

inclusive language of the itutional text, but also because

the jury plays a central in our constitutional framework.

“Jury trial was a valued right of persons accused of crime,

and it was also an allocation of political power to the

citizenry.” Albert W. Alschuler & Andrew G. Deiss, A

Brief History of the Criminal Jury in the United States, 61 U.

Cul. L. REV. 867, 876 (1994). De Tocquveille described

the American jury as “a political institution . . . one form

of the sovereignty of the people.” 1 DEMOCRACY IN

AMERICA 335 (Reeves trans., J.S. Mill ed., 1961). It was,

‘© The court below relied on 18 U.S.C. § 3584(a) as evidence of a

legislative determination “that multiple offenses prosecuted jointly are no

more serious in their aggregate than the most serious single offense of

conviction.” 65 F.3d at 255. This statute, does not, however, place

any limits on the power of the court to impose consecutive sentences, and

does not, therefore, actually limit the authorized penalty for multiple

counts when tried together. Rather, section 3584(a) establishes a rule of

construction when a sentencing judge fails to specify whether sentences

are imposed consecutively or concurrently.

24

a “school . . . in which each juror learns his rights.” /d. at

337.

The opportunity for ordina’y citizens to

icipate in the administradon of justi

has long been recognized as one of the

jury system. In Balzac v. Porto Rico,

Chief Justice Taft wrote for the Court:

"The jury system postulates a

conscious duty of participation in

One of its greatest benefits is in

the security it gives the people

that they, as jurors actual or

possible, being part of the judicial

system of the country can prevent

its arbitrary use or abuse."

Powers v. Ohio, 499 U.S. 400, 406 (1991) (quoting Balzac

v. Porto Rico, 258 U.S. 298, 310 (1922); alteration in

original; other citations omitted). Indeed, it is this right and

duty “of participation in the machinery of justice,” in

addition to the right of the individual, that underlies this

Court’s steadfast refusal to tolerate discrimination in jury

selection. See, e.g., Allen v. Hardy, 478 U.S. 255, 259

(1986) (per curiam); Powers, 499 U.S. at 406; J.E.B. v.

Alabama ex rel. T.B., 114 S. Ct. 1419, 1428 n.14 (1994).

“The framers’ enthusiastic support for the jury stemmed

in large measure from the role that juries had played in

resisting English authority before the Revolution.”

Alschuler & Deiss, 61 U. Cui. L. REV. at 871. One of the

complaints registered against the King in the Declaration of

Independence was that he had deprived the colonists “of the

protection against arbitrary action. Providing an accused

with the right to be tried by a jury of his peers gave him an

inestimable safeguard against the corrupt or overzealous

prosecutor and against the compliant, biased, or eccentric

judge.” Duncan, 391 U.S. at 156. In Federalist 83,

Hamilton responded to those objecting to the proposed

Constitution because it did not expressly provide for the right

to jury trial in civil cases.’ Hamilton recognized that

concerns over the silence of the Constitution with respect to

" THE FEDERALIST PAPERS 495-510 (Clinton Rossiter ed., 1961)

26

civil cases had spilled over to criminal cases, and he took

pains to reassure his readers that legislative authority over

the mode of trial, “in regard to criminal causes, is abridged

by the express injunction of trial by jury in all such cases.”

Id. at 496-97. Despite these assurances, concerns about

preserving the right to jury trial were strong enough that a

number of States called for the inclusion of a right to jury

trial in criminal cases in the Bill of Rights, to which

Congress ultimately acceded by proposing the jury trial

clause of the Sixth Amendment. See Frankfurter &

Corcoran, 39 HARV. L. REV. at 968-75; Singer v. United

States, 380 U.S. 24, 31 (1965).

“The guarantees of jury trial in the Federal and State

Constitutions reflect a profound judgment about the way in

which law should be enforced and justice administered.”

Duncan, 391 U.S. at 155. As the Court has recently

observed, the abridgment of the jury’s role in a criminal case

is a structural defect, “without which a criminal trial cannot

reliably serve its function.” Sullivan v. Louisiana, 508 U.S.

275, __, 113 S. Ct. 2078, 2083 (1993). The constitutional

rights to jury trial secure a degree of citizen participation in

governance as well as provide a safeguard for the accused.

"Indeed, with the exception of voting, for most citizens the

honor and privilege of jury duty is their most significant

opportunity to participate in the democratic process."

Powers, 499 U.S. at 407. These reciprocal rights provide a

constitutional foundation for the legitimacy of criminal

sanctions in our society, because for all but “petty offenses”

the precondition for criminal punishment is the “common-

sense judgment of a jury,” Duncan, 391 U.S. at 155, about

guilt or innocence. This "ensures continued acceptance of

the laws by all of the people.” Powers, 499 U.S. at 407

(citing Green v. United States, 356 U.S. 165, 215 (1958)

(Black, J., dissenting)). The fixed dividing line assures the

participation of the community in all decisions affecting

27

more than six months of liberty. It would, truly, raise form

over substance if — by charging several counts rather than

one — prosecutors could seek serious criminal penalties

without presenting their case to a jury.

D. A Trial Judge Cannot Deprive the Accused of the

Right to a Jury Trial by Promising to Impose a

Sentence No Greater Than Six Months’

Imprisonment.

The Second Circuit below properly declined to rely on

the magistrate judge’s promise not to sentence Lewis to more

than six months in prison as a reason for upholding his

convictions in a bench trial. 65 F.3d at 255." The right

to jury trial is a check on the powers of the judiciary, as

well as the executive and legislative branches. Duncan, 391

U.S. at 156. The subjective decision of an individual trial

judge — who may be preoccupied with the management of

a lengthy docket — that a particular case does not require a

sentence of more than six months cannot nullify the

legislature’s determination that the penalty authorized for the

prosecution exceeds “that allowable for a petty criminal

offense.” Codispoti, 418 U.S. at 516. If, as this Court held

in Blanton, 489 U.S. at 541-42, "[t}he judiciary should not

substitute its judgment as to seriousness for that of the

legislature,” about an entire category of offenses, certainly

a single trial judge should not be allowed to do so about a

single case. Allowing a judge to avoid holding a jury trial

by promising before trial to limit the sentence would

substitute that judge’s view of the seriousness of the case for

The U.S. Attorney for the District of Columbia argued that such

promises would have no effect on the right to jury trial in Burgess. No

transcript of the Burgess argument is available, however the government

previously made the same point in its Brief for Respondent at 37-38,

Foster v. Canan, 661 A.2d 676 (D.C. 1995).

28

the legislature’s judgment expressed by the maximum

authorized penalties for the offenses.

This Court has already decided that it is the authorized

penalty for an offense, rather than the actual sentence

imposed after trial (except for criminal contempts, where the

sentence imposed is the authorized sentence) that determines

the right to jury trial. Duncan, 391 U.S. at 159-60. The

only difference between a pretrial promise to limit the

sentence to less than six months and an actual sentence of

less than six months after trial is that the defendant would

have no subjective fear of a more serious punishment. But

the six month line between petty offenses and crimes is not

concerned so much with reducing the defendant’s subjective

apprehension of a long sentence, as it is with identifying

those prosecutions that must be submitted to the community

because of their authorized penalty. If individual trial judges

had the power to deny jury trials whenever they were willing

to promise a sentence of less than six months’ imprisonment,

they could do so even in a felony case.'”

' The issue here is fundamentally different from the question before the

Court in Scott v. Illinois, 440 U.S. 367 (1979), because the purpose of

the jury trial clauses is not to enhance the reliability of verdicts in

criminal trials. This Court in Duncan acknowledged the continuing

debate, “as to the wisdom of permitting untrained layman to determine

the facts in civil and criminal proceedings." 391 U.S. at 156-57. But

the basis of the jury trial right was not that juries were better at finding

facts than judges, so much as that they might sometimes find them

differently. “If the defendant preferred the common-sense judgment of

a jury to the more tutored but perhaps less sympathetic reaction of the

single judge, he was to have it." Jd. at 156. The Court drew comfort

from a recent study that concluded “when juries differ with the result at

which the judge would have arrived, it is usually because they are

serving some of the very purposes for which they were created and for

which they are now employed. /d. at 157 (citing HARRY KALVEN, JR.

(continued...)

29

Finally, there is a serious practical objection to basing

the right to jury trial on pretrial promises. Trial judges in

federal cases are statutorily obligated to base their sentences

on the characteristics of the offense and of the offender. See

18 U.S.C. § 3553 (a) ("The court, in determining the

particular sentence to be imposed, shall consider [among

other factors] — (1) the nature and circumstances of the

offense and the history and characteristics of the defendant").

The same is generally true of state courts as well. Judges

of its enormous potential to prejudicially taint the

determination of guilt or innocence. To limit the sentence

pre-trial, a judge would have to make a subjective

determination of "what the case is worth" before any

witnesses are presented.”

Sentences are not bargaining chips for a judge to use to

expedite court calendars when an accused is entitled to, and

has declined to waive, a jury trial. A judge’s promise may

not be as important to the defendant as the right to jury trial

in any given instance.’ Certainly, it is not a bargain that

'%.. continued)

& HANS ZEISEL, THE AMERICAN JURY (1966)). Additionally, as we

discuss in part D, supra, the rights of the accused are not the only rights

at stake. The citizenry has an interest in participating in the

determination of guilt or innocence in any prosecution for which the

legislature has authorized serious penalties, regardless of the judge’s pre-

or post-trial sentencing decision.

»” Cf. Scott, 440 U.S. at 374 (Powell, J., concurring).

2! There is an important practical difference as well between the decision

in Scott to promise to impose no jail time, and the finer distinction of

whether to impose more or less than six months’ imprisonment.

30

should be forced on the defendant in derogation of the "most

priceless" of our safeguards of individual liberty. Jrvin v.

Dowd, 366 U.S. 717, 721 (1961).

CONCLUSION

The judgments of conviction should be reversed, and the

case remanded for a trial by jury.

Respectfully submitted,

DAVID A. REISER

(Counsel of Record)

Appellate Clinic

George Washington University

Law School

2000 G Street, N.W.

Washington, D.C. 20052

(202) 994-7463

Dated: March 1, 1996